The Western Cape High Court in Cape Town has set aside a R1,000 admission of guilt fine that the Paarl magistrate’s court unlawfully made an Ethiopian national pay after he was arrested and detained for being in the country illegally this month.
In a judgement handed down on Monday by judge James Lekhuleni and acting judge president Patricia Goliath, the high court said Ethiopian national, Tsegaye Esyas, should be refunded the R1,000 admission of guilt fine he paid to the Paarl magistrate’s court on April 10.
Admission of guilt fine paid illegally
The high court said Esyas was made to pay the R1,000 admission of guilt fine illegally. He was also not properly informed of the legal ramifications of doing so.
Esyas brought an application in the high court on an urgent basis for the review. Also for setting aside of an admission of guilt fine he paid on April 10 at the magistrate’s court.
Esyas also sought an order that the admission of guilt fine of R,1000 be refunded. He sought to be brought before another magistrate as soon as reasonably possible. This is for him to have a fair and just hearing for bail, he said.
In addition, Esyas sought an order that an interpreter be present when he appears at the hearing before another magistrate.
The application was brought against magistrate Winifred Mckenzie and head of immigration, Annelise van Dyk. Also director of public prosecutions in the Western Cape, and Paarl East Police Station, among others.
None of the respondents opposed the application. Instead they filed a notice to abide by the decision of the high court. This is provided no cost order is sought against them.
Lekhuleni ordered that the admission of guilt fine be set aside.
Another magistrate to preside over the case
“The matter is referred to Paarl magistrate’s court to be heard de novo before another magistrate. [This]… for the applicant to have a fair hearing as soon as reasonably possible. An appropriate, competent interpreter will be made available for the applicant at the hearing of those proceedings. That the second respondent [van Dyk] be removed entirely from handling the applicant’s matter. And [be removed] from being present in the criminal proceedings involving the applicant,” said Lekhuleni.
In his court application, Esyas said he does not speak English at all and arrived in South Africa approximately two months ago. He had fled from Ethiopia due to severe political unrest.
Esyas said he obtained employment through his duly documented brother in Paarl as a shopkeeper. He simply operated the till as he could not converse in English with customers.
Esyas was arrested on April 3 in Paarl for being an undocumented immigrant.
He said he appeared at the Paarl magistrate’s court on April 4. The matter was postponed to April 10 because there was no interpreter present in court.
Esyas then appeared at the Paarl magistrate’s court on April 10, where he said he was not legally represented. There was no interpreter in the courtroom. As a result, he did not understand the court proceedings that were unfolding.
Head of immigration ‘misled family’
He said Van Dyk approached his family members outside court and asked them to pay R1,000 for Esyas’ bail.
Esyas’ brother said after paying the amount, he returned to the courtroom with the receipt. He was thinking that Esyas was about to be released on bail.
Instead he was told that Van Dyk had already ensured that Esyas was taken away and is in custody.
“Perplexed by what was happening, the applicant’s family members approached the police officer. They asked the police officer why the applicant was kept in custody when he had just paid bail. In response, the female officer explained to the applicant’s brother that they were mistaken.
“She said they did not pay for the applicant’s bail. Instead, they paid the applicant’s admission of guilt fine. The police officer further explained to them that since the applicant has now paid the admission of guilty fine, Ms Van Dyk is authorised to keep the applicant in custody until he is deported.”
